The imposition of a fine for organising a nationalist commemoration on the day of the Romanian national holiday did not breach the Convention

JUDGMENT

Csiszer and Csibi v. Romani  05.05.2020 (no. 71314/13 and 68028/14)

see here 

SUMMARY

The case concerned the imposition of an administrative fine on the applicants for organising a
gathering on 1 December 2010, the day of the Romanian national holiday, to commemorate the
founding of the Székely battalion. On 1 December 1918, in Cluj-Napoca, Hungarian military units had
joined forces to form the Székely battalion to fight the Romanian army, which had entered
Transylvania. In April 1919 the battalion surrendered to the Romanian army.

The applicants had been penalised for organising a prohibited gathering under Article 26 § 1 (a) of
Law no. 60/1991. The national courts had observed that the gathering also contravened Article 9 of
the Law, which prohibited public gatherings aimed, among other things, at propagating fascist
and/or chauvinist ideas, denigrating the country and the nation, and inciting others to national
hatred.

The Court considered that the applicants’ conduct in deliberately refusing to comply with the rules
laid down by domestic law had rendered the planned gathering unlawful under the national
legislation. It noted that the national authorities had given relevant and sufficient reasons capable of
justifying the interference with the applicants’ exercise of their right to freedom of assembly.

With regard to the allegation of discrimination on grounds of ethnicity, the Court noted that the
second applicant had not demonstrated in the proceedings before it that persons in the same
situation as him – that is, seeking to organise commemorative gatherings in breach of Article 5 § 2 of
Law no. 60/1991 – had not been penalised by the authorities. As to the reasons given by the
domestic courts for upholding the penalty, the Court noted that the courts had not based their
decisions on the second applicant’s ethnic background.

PROVISION

Article 11

PRINCIPAL FACTS

The applicants, Lóránt Csiszer and Barna Csibi, are Romanian nationals who were born in 1978 and
1979 respectively and live in Miercurea Ciuc (Romania). They state that they belong to the Szekler
(Székely) ethnic group, a Hungarian-speaking ethno-linguistic group mainly concentrated in
Transylvania and with historic ties to the Hungarian people. On 1 December 2010 the Cluj-Napoca
municipal council staged various events in the city centre to celebrate the Romanian national
holiday, including a military parade and a series of open-air concerts.

On 12 October 2010 Mr Csibi wrote to the mayor of Cluj-Napoca requesting assistance in organising
a commemorative gathering to be held on 1 December 2010, from 5 p.m. to 6 p.m., on the city’s
Union Square. The purpose of the gathering was to commemorate “the founding and activity of the
Székely battalion”.

On 19 October 2010 the municipal council replied to Mr Csibi informing him that it was refusing his
request because another event that had already been approved was due to take place at the same
location. The council also refused to authorise the gathering at any other city-centre location.

Mr Csibi brought an administrative action against the local council in the Cluj-Napoca County Court.

The action was dismissed.

On 1 December 2010, at around 4.30 p.m., a number of police officers, together with a mobile
gendarme unit, stopped Mr Csiszer and Mr Csibi as they and six other people were leaving a hotel
and restaurant in a street perpendicular to Union Square.

The gendarmes drew up an administrative offence report the same day, fining Mr Csiszer
10,000 Romanian lei (RON) (approximately 2,200 euros (EUR)). The applicant contested the fine in
the Cluj-Napoca District Court. The court dismissed the action and Mr Csiszer appealed. In a final
judgment of 5 June 2013 the Cluj County Court dismissed the appeal as unfounded.

An administrative offence report was also drawn up the same day concerning Mr Csibi, who was
ordered to pay a fine of RON 5,000 (approximately EUR 1,100). He brought administrative
proceedings in the district court. The court dismissed the action and ruled that the offence report
had been lawful and justified. The court noted at the outset that the Székely battalion, also referred
to using the name of Albert Wass, was part of the “Hungarian Guard” whose command structure
was based in Győr in Hungary and which subscribed to a fascist ideology. The court observed that
when the applicants had been stopped, one of the members of the group had been carrying a flag
bearing the Szekler insignia, and that a second person had been wearing a black jacket with the
words “Wass Albert szov” written on the back and had been carrying a banner with the inscription
“Wass Albert Szovetseg”. Lastly, the court noted that at the time Mr Csibi had been stopped, he had
planned and organised a gathering that was prohibited under Article 9 (a) of Law no. 60/1991.

Mr Csibi appealed against the judgment. The County Court dismissed the appeal and upheld the
first-instance judgment.

THE DECISION OF THE COURT…

Article 11

The Court noted that the applicants had been penalised for organising a prohibited gathering, on the
basis of Article 26 § 1 (a) of Law no. 60/1991, which made the “organisation and conduct of
undeclared, unregistered or prohibited public gatherings” an administrative offence. The domestic
courts had also found the gathering to be in breach of Article 9 of Law no. 60/1991 prohibiting public
gatherings aimed, among other things, at propagating fascist and/or chauvinist ideas, denigrating
the country and the nation, and inciting others to national hatred. As justification for the penalties
imposed, the national authorities had also mentioned in the administrative offence reports the fact
that the applicants had organised a gathering despite its not having been approved because another
public meeting was being held in the same place. That reason had subsequently been upheld by the
domestic courts.

The Court reiterated that it was important for persons organising and taking part in demonstrations,
as actors in the democratic process, to abide by the rules governing that process by complying with
the regulations in force.

It reiterated that the national authorities had a wide discretion in determining what measures were
appropriate in order to prevent disturbances at a gathering. Nevertheless, it observed that an
unlawful situation did not justify an infringement of freedom of assembly. However, the limits of
official tolerance towards an unlawful assembly depended on the specific circumstances of the case.

The Court noted that the national courts had confirmed that Article 5 § 2 of Law no. 60/1991
prohibited the simultaneous staging of two separate gatherings in the same place, and that the
applicants had been alerted by the national authorities to the application of that statutory provision.
Although the applicants had not been accused of any violent conduct, the Court could understand
that the authorities may have feared a rapid deterioration of the situation. Given the scale of the
lawfully planned events it would not have been easy for the national authorities to ensure the safety
of two public gatherings being held simultaneously in the same part of the city.

In characterising the commemorative gathering in question as a “prohibited” gathering and thus
reinforcing the necessity of imposing penalties on the persons concerned, the national courts had
referred, in view of the subject matter of the commemoration, to Article 9 (a) of Law no. 60/1991.
The courts had taken into consideration the historical significance of the Székely battalion and the
fact that the applicants were members of the Szekler unit. The domestic courts had focused
particularly on the fact that one of the participants in the commemorative gathering had worn
insignia referring to the name of Albert Wass. The national courts had agreed that the reference to
Albert Wass and to what he represented in Romania was apt to raise doubts as to the purpose of the
commemorative gathering and made it necessary to clarify that purpose, and could even render the
gathering illegal on the grounds that it was intended to propagate fascist ideas.

The Court had previously held that ideas or conduct could not be excluded from the protection
provided by the Convention merely because they were capable of creating a feeling of uneasiness in
groups of citizens or because some might perceive them as disrespectful. Nevertheless, in the
context of the celebration of the Romanian national holiday, the holding of the commemorative
gathering in question, which the applicants had sought to organise using symbols that cast doubt on
the true purpose of their commemoration, had been liable to generate a degree of social tension
conducive to violence, given the particular sensitivity of public opinion regarding their ideas, which
could be perceived as contrary to those underlying the public events already being staged. Hence, the Court did not find it unreasonable or arbitrary for the Romanian courts to conclude that the
penalties imposed on the applicants were additionally justified by the fact that the commemorative gathering had been contrary to Article 9 (a) of Law no. 60/1991.

Lastly, the Court noted that the fact that they were not classified as criminal offences did not make
the acts in question any less of a threat to public order. The mobile gendarme unit had imposed
administrative fines on the applicants. Although the amounts had been different for each applicant,
they had been within the limits laid down by Article 26 § 2 of Law no. 60/1991. Moreover, it had
been open to the applicants to challenge the lawfulness and justification of the fines, and the
amounts thereof, in the national courts. Consequently, they had enjoyed procedural safeguards
against the imposition of illegitimate penalties.

The Court considered that the national authorities had not overstepped their margin of appreciation
and that the penalties complained of could be regarded as “necessary in a democratic society” and
“proportionate to the aim pursued”.

There had therefore been no violation of Article 11 of the Convention.

Article 14 read in conjunction with Article 11 (application no. 68028/14)

The second applicant alleged that he had been discriminated against in the enjoyment of his right to
freedom of assembly under Article 11 of the Convention because of the fact that he belonged to an
ethnic minority within the country.

The Court reiterated that in order for an issue to arise under Article 14 of the Convention there had
to be a difference in treatment between persons placed in analogous or comparable situations.

Firstly, the Court noted that the second applicant had not demonstrated in the proceedings before it
that persons in the same situation as him – that is, seeking to organise commemorative gatherings in
breach of Article 5 § 2 of Law no. 60/1991 – had not been penalised by the authorities. Secondly, it
observed that it was not the fact that one of the members of the group to which the applicant
belonged had been carrying a flag that had led to the sanction in question, but the fact of organising
a commemorative gathering contrary to the aforementioned Article 5 § 2.

Lastly, with regard to the reasons given by the domestic courts for upholding the penalty, the Court
noted that they had not based their decisions on the second applicant’s ethnic background.

Consequently, the Court held that, even assuming that there had been a difference in treatment in
the present case, it had not been shown that it was based on the second applicant’s ethnic
background. This complaint was therefore rejected as being manifestly ill-founded.


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